[Walt at 314] No one says it -trumps- the Constitution. But the laws passed are also the supreme law of the land. This fact actually moots the 10th amendment. The Framers knew that.
[Nonseq to nc at 223] section 2 of the Militia Acts provided that the President could call out the militia to supress insurrection and that he didn't need for the state to call for assistance
[nc to Nonseq at 234] As always, to support your unconstitutional argument, you must depart from the Constitution and cite something else as being superior to the Constitution.
[Walt to nc at 311] You have to ignore the fact that the laws made in pursuance of the Constitution are -also- the supreme law of the land.
You exhibit a fundamental misunderstanding of the Supremacy Clause. The Constitution is the fundamental and paramount law of the nation and reigns supreme over all Acts of Congress, all Treaties, and all other government laws, regulations, and agreements.
The Supremacy Clause holds that Federal laws are supreme over State and Local laws. State and Local laws which conflict with Federal laws must yield.
The Supremacy Clause does NOT hold that the Constitution, Federal laws, and Treaties are equal.
It has been well established that Federal laws and Treaties must yield to the Constitution. To be Constitutional, Federal laws must be made pursuant to the Constitution. Treaties must be made "under the authority of the United States." All such authority was delegated by the people via enactment of the Constitution.
Federal laws and Treaties are held to be equal and the one adopted last in time takes precedence over the other.
ALL laws and treaties must yield to the Constitution. For any law or treaty which conflicts with the Constitution, the Federal courts may strike it down as unconstitutional.
Your claim that a Federal law could moot the 10th Amendment or any other element of the Constitution is a legal absurdity.
One other provision that expressly relates to federalism is the Supremacy Clause found in Article VI of the Constitution. It declares that the "Constitution, and the Laws of the United States which shall be made in Pursuance thereof, and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land." This provision sets up a clearly hierarchical relationship between the federal government and the states. Practically, the effect is that state and local laws are deemed preempted if they conflict with federal law."Constitutional Law, Principles and Policies, 2 Ed., Erwin Chemerinsky, 2002
As the Supreme Court declared: "[U]nder the Supremacy Clause, from which our pre-emption doctrine is derived, 'any state law, however clearly within a State's acknowledged power, which interferes with or is contrary to federal law, must yield.'"Ibid. 376
The Constitution gives the president the authority, "by and with the Advice and Consent of the Senate, to make treaties provided two thirds of the Senators present concur." These treaties are the law of the land and prevail over all conflicting state laws. If there is a conflict between a treaty and a federal statute, the one adopted last in time controls. The Court has explained that when a statute and a treaty "relate to the same subject, the courts will always endeavor to construe them so as to give effect to both, if that can be done without violating the language of either; but if the two are inconsistent, the one last in date will control the other."
Ibid at 275-6.
[Underline added]
A related issue is the extent to which Congress, by statute, may increase presidential powers beyond what are found in the Constitution. In Clinton v. City of New York, the Supreme Court considered the constitutionality of a federal statute which created authority for a presidential line-item veto. The statute empowered the president to veto (or more precisely to "cancel") particular parts of appropriation bills while allowing the rest to go into effect. Congress could overturn such a veto by a majority vote of both houses.The Supreme Court, in an opinion by Justice Stevens, declared this statutory increase in presidential power unconstitutional. Justice Stevens explained that the president, by exercising the line-item veto, was changing a law adopted by Congress; the final version of the law is diffferent after the veto than what Congress passed. The Court concluded that the Constitution does not allow such presidential authority. Justice Stevens wrote: "In both legal and practical effect, the President has amended two Acts of Congress by repealing a portion of each. '[R]epeal of statutes, no less than enactment, must conform with Art. I.' There is no provision in the Constitution that authorizes the President to enact, to amend, or to repeal statutes." The Court emphasized that the procedures for enacting and vetoing laws contained in the Constitution must be strictly adhered to and that any changes must come from a constitutional amendment, not legislative action.
Ibid at 336-7
Treaties, agreements between the United States and a foreign country that are negotiated by the president and ratified by the Senate, are permitted unless they violate the Constitution. It is firmly established that if there is a conflict between a treaty and a federal statute, the one adopted last in time controls.* * *
Treaties, however, cannot violate the Constitution. In Reid v. Covert, the Court held that American civilian dependents of military personnel in a foreign country must be accorded a trial that meets the dictates of the Constitution. Justice Black explained that "no agreement with a foreign nation can confer power on the congress, or on any other branch of Government, which is free from the restraints of the Constitution."
Ibid at 361
In Marbury v. Madison (1803), the Supreme Court held § 13 of the Judiciary Act of 1789 unconstitutional. The Act was read by Justice Marshall, perhaps erroneously, to enlarge the Supreme Court's original jurisdiction beyond the limits defined in Art. III of the Constitution. Since the constitution prescribes the powers delegated by the people to the national govenrment, a congressional act contrary to the Constitution is invalid. The Constitution is supreme over ordinary federal or state law under the Supremacy Clause of Art. VI.Constitutional Law, 6 Ed., Jerome A. Barron and C. Thomas Dienes, Black Letter Series, West Group, 2003, 68
Art. VI provides that all treaties which are made "under the authority of the United States" are the supreme law of the land. They prevail, as do Executive Agreements, over inconsistent state law. Treaties and Executive Agreements are subject to constitutional limitations. Reid v. Covert (1957). Treaties and Acts of Congress are on a par, i.e., the last in time controls. The Chinese Exclusion Case (1889).
Ibid at 156
On February 24, 1803, Chief Justice Marshall delivered the opinion of the Supreme Court in Marbury v. Madison. In the opinion the court held that Marbury had a right to his judicial commission. In so doing the Court found that the executive was subject to certain legal and constitutional restraints that could be enforced by the judiciary.Yet the Court found that it could not grant the remedy in an original action because it was not within the jurisdiction fixed for the Court by Article III. The opinion interpreted a section of the Judiciary Act of 1789 as placing this action within its jurisdiction but found that this law conflicted with the Constitution. Marshall concluded by holding that the Supreme Court had the power to declare such a law to be invalid as a violation of the Constitution.
Constitutional Law, 4 Ed., John E. Nowak and Ronald D. Rotunda, West Publishing Co., 1991, p. 2
This clause [The Supremacy Clause] at one time had been interpreted by legal authorities to suggest that treaties were equal to the Constitution. As a consequence the theory developed that said that treaties were not subject to any constitutional limitations.....That the treaty power of the United States extends to all proper subjects of negotiation between our government and the governments of other nations, is clear.... The treaty power, as expressed in the Constitution, is in terms unlimited except by those restraints which are found in that instrument against the action of the government or of its departments.... It would not be contended that it extends so far as to authorize what the Constitution forbids, or a change in the character of the government or in that of one of the states, or a cession or any portion of the territory of the latter without its consent....
Ibid at 210
Quoting Mr. Justice Field of the Supreme Court in De Geofroy v. Riggs.
If there were any remaining doubt on the issue whether there is any outer limit to the treaty-making power, that question was closed resoundingly in Reid v. Covert, where a plurality of the Supreme Court, in holding American civilian dependents of overseas military personnel entitled to civilian trial, stated that neither a treaty nor an executive agreement "can confer power on the Congress, or on any other branch of government, which is free fom the restraints of the Constitution."American Constitutional Law, 3 ed., Vol. I, West Publishing Co., Laurence H. Tribe, p. 647
Footnote 18
see also The Cherokee tobacco, 78 U.S. (11 Wall.) 616, 620-21 (1871)(dictum) ("a treaty cannot change the constitution or be held valid it it be in violation of that instrument").Ibid at 647
"[A]ll those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently the theory of every such government must be, that an act of the legialature, repugnant to the constitution, is void."Ibid at 210
Quoting from Marbury v. Madison, 5 U.S. at 177.
Funny you should mention that.
"The men at the [Constitutional] convention, it is clear enough, assumed that the national government must have the power to throw down state laws that contradicted federal ones: it was obvious to them that the states could not be permitted to pass laws contravening federal ones..."
--"Decision in Philadelphia" by Collier and Collier
Walt
And yet the Supreme Court cites the Militia Act is saying that the president was authorized to put down the rebellion.
"The Constitution confers on the President the whole Executive power. He is bound to take care that the laws be faithfully executed. He is Commander-in-chief of the Army and Navy of the United States, and of the militia of the several States when called into the actual service of the United States. He has no power to initiate or declare a war either against a foreign nation or a domestic State. But, by the Acts of Congress of February 28th, 1795, [The Militia Act] and 3d of March, 1807, he is authorized to called out the militia and use the military and naval forces of the United States in case of invasion by foreign nations and to suppress insurrection against the government of a State or of the United States."
--Majority Opinion, The Prize Cases
Walt
The Constitution states that the Constitution and the laws shall be the supreme law of the land.
Laws can held be declared unconstitutional. When that happens in the case of the Militia Act, get back to me.
I think you are trying to sway people with quotes that don't mean what you'd like them to mean.
In any case, the Supreme Court used the Militia Act to -support- President Lincoln's actions.
Walt